Gujarat High Court
Kalpesh H Thakker vs State Of Gujarat & 4 on 11 April, 2014
Author: G.R.Udhwani
Bench: G.R.Udhwani
R/SCR.A/3289/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SPECIAL CRIMINAL APPLICATION (DIRECTION - TO TRANSFER INVESTIGATION
TO CBI) NO. 3289 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE G.R.UDHWANI
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1 Whether Reporters of Local Papers may be allowed to see the judgment ?NO
2 To be referred to the Reporter or not ? NO
3 Whether their Lordships wish to see the fair copy of the judgment ? NO
4 Whether this case involves a substantial question of law as to the NO
interpretation of the Constitution of India, 1950 or any order made
thereunder ?
5 Whether it is to be circulated to the civil judge ? NO
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KALPESH H THAKKER....Applicant
Versus
STATE OF GUJARAT & 4....Respondents
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Appearance:
MR JV JAPEE, ADVOCATE for the Applicant.
MR HARSHIL C DATTANI, ADVOCATE for the Respondents No. 2 - 5
MR LB DABHI, ADDL. PUBLIC PROSECUTOR for the Respondents No. 1
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CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 11/04/2014
CAV JUDGMENT
1. Rule. Learned counsel for respondents waive service. Considering the fact that the trial is in progress and may not hault for pendency of this petition, by consent, rule is heard today.
2. This petition under Articles 226/227 of the Constitution of India Page 1 of 24 R/SCR.A/3289/2013 CAV JUDGMENT and Section 482 of the Code of Criminal Procedure ( for short "Cr.P.C." ) is instituted calling in the question the order dated 4.3.2013 passed below Exh.82 by the learned 5th Additional Sessions Judge, Khambhalia in Sessions Case No.29 of 2011 rejecting the application seeking further investigation under Section 173(8) of Cr.P.C. A consequential prayer to grant the application Exh.82 under Section 173(8) of the Cr.P.C and to direct further investigation by Crime Branch or CBI, citing inability of the concerned Investigating Agency to find out the actual fact situation of the missing child Hemaksh, is also made.
3. The facts in nutshell are as under:
3.1 The petitioner is brother of Aartiben. She was married to Prashant Mahesh Pandya - respondent No.2 herein six years back. He is one of the accused in the aforementioned Sessions Case.
3.2 Out of the wedlock between the deceased and Prashant, Hemaksh was born to them. It is alleged in the pending sessions case that deceased Aartiben was being frequently taunted, beaten up, abused by accused persons. Dowry was also being demanded from her and respondent No.1 is alleged to have told her that he was interested only in the property of her father and son for continuation of his pedigree.
3.3 It is alleged in the sessions case that a quarrel took place on 3.2.2011 between husband and wife. Aartiben was severely beaten, as a consequence of which, she along with her son Hemaksh left the house on 5.2.2011 in the morning at about 10:45 without informing any of the family members. Thereafter the petitioner gave a written complaint to the DSP, Jamnagar on 5.2.2011.
3.4 On 7.2.2011 dead body of the deceased Aartiben alone was Page 2 of 24 R/SCR.A/3289/2013 CAV JUDGMENT recovered from a Dam named `Ghee Dam'. On 8.2.2011 her autopsy was carried out and then she was cremated. It is alleged that, none of the relatives from her matrimonial side attended the cremation. It is further alleged that dead body of minor son of deceased Aartiben could not be traced from the Dam despite carrying out the search by fire brigade personnels with the help of latest equipments. It is alleged that the respondent No.2 - the father of Hemaksh conducted himself unlike a father even as he did not make any attempt to trace the child though the child was missing in mysterious circumstances. It is alleged that deceased alongwith the child went missing on 5.2.2011, and as per her autopsy, which was done on 8.2.2011, her death could be reckoned to 30 hours before autopsy and thus she might have died at about 5:00 p.m. on 6.2.2011. Thus apart from the fact that the period of her missing between 11:45 a.m. of 5.2.2011 and 5:00 p.m. of 6.2.2011 is not account, there are the chances of her having gone to her husband between the said period even as she told so to the some of the witnesses.
It is alleged that thus her husband might have snatched the child from her and killed her and that is the reason of his not showing a keen interest as a father would naturally do, to search the child.
3.5 A complaint was registered vide C.R.No. I - 26 of 2011 alleging offences punishable under Sections 498A, 304B, 323 and 114 of the Indian Penal Code ( for short "IPC" ) as also Sections 3 and 7 of Dowry Prohibition Act by the petitioner against respondents No.2 to 5 herein wherein chargesheet is already filed. Charges are also framed and the trial is in progress.
3.6 The petitioner moved this Court with Special Criminal Application No.626 of 2011 seeking a writ of habeas corpus for the missing child but withdrew it with a view to approach the appropriate forum.
Page 3 of 24 R/SCR.A/3289/2013 CAV JUDGMENTThereafter he made a representation to DSP, Jamnagar on 31.03.2011 requiring him to take appropriate steps for tracing the minor child. In that representation, he expressed an apprehension that the child is alive and kept hidden, to the knowledge of the accused persons. The petitioner also represented to Home Secretary, State of Gujarat for entrustment of investigation to CID, Crime so as to locate the whereabouts of the child.
3.7 On petitioner's application in the said sessions case, the Police Inspector of Khambhalia Police Station submitted an action taken report in relation to investigation for missing child. In that report, he contended that two witnesses viz. Navnitbhai Devjibhai Chopda and Mashribhai Govabhai Karmur had seen bare footed lady Aartiben with the child, crying and proceedings towards the Dam. That as per the statement of Chowkidar Meghabhai Mulubhai Dharani, dead body of a woman alone floating on the water was seen by him. He further stated in the action taken report that the fireman made the efforts using latest equipments to locate the dead body of a boy, but in vain.
3.8 In the action taken report, the PSI is stated to have recorded the statement of the witnesses Mashribhai Govabhai Kurmur, Meghabhai Mulubhai Dharani, Virbai, Navnitbhai as also those of accused Rakeshbhai Harilal Jani, Jyotiben, Prafullaben, Prashant Maheshbhai Pandya after the petitioner's representation dated 11.3.2013. He also recorded statement of the neighbour of one of the accused Prafullaben, viz. Rashmiben Rasikbhai Vithlani, Nathubhai Virabhai Vadher, Sahdevsinh Karansinh Jhala etc. and also searched for missing boy in the house of the accused persons. He also reported the fact as to missing child with the photo was widely published in the Newspaper and the News Channel.
Page 4 of 24 R/SCR.A/3289/2013 CAV JUDGMENT3.9 That under the instructions of District Suptd. of Police, efforts to find out the missing child was also done by one Shri A.L.Mehta, PSI and on 12.7.2012 Ghee Dam was empty and therefore once again efforts with help of fireman to locate the dead body of Hemaksh were made. That such an efforts were videographed. The PSI ultimately concluded by stating that possibility of dead body of Hemaksh being consumed by fresh water animals in the dam cannot be ruled out.
3.10 Thereafter the petitioner filed another habeas corpus petition being Special Criminal Application No.875 of 2013 for the missing child which came to be disposed of with the direction to the concerned accused persons to file an undertaking to extend their cooperation in the investigation.
3.11 Another petition being Special Criminal Application No.308 of 2012 also came to be filed by the petitioner which was ultimately disposed of reserving the liberty to the petitioner to agitate the subject matter of that petition in the concerned Sessions Court. Thus the petitioner preferred an application Exh.82 which, having been rejected, the present petition is filed.
4. The petitioner has also moved draft amendment raising various contentions.
5. Respondents No.2 to 4, after service of notice, have appeared and filed an affidavit. The allegation as regards torture, taunts, demand of dowry etc. are denied. They allege suppression of facts of the second respondent being in Jail as an under trial prisoner since 14.2.2011 in the petition. They also alleged the petitioner having deliberately provided a Page 5 of 24 R/SCR.A/3289/2013 CAV JUDGMENT wrong address in the cause title of the petition and that a false affidavit of service has thus been filed.
5.1 The allegation of deceased Aartiben having been severely beaten up by the said respondent on 3.2.2011 and the factum of the deceased having left the house on 5.2.2011 without any intimation to herinlaws is denied. The allegation of the respondent having not attended cremation of the deceased Aartiben are also denied. It is stated in the affidavit that, as a father of the child Hemaksh, respondent No.2 had made all the efforts and the record forming chargesheet contains various statements of the witnesses. It is stated that respondent No.2 is in Jail since the date of lodgment of FIR i.e. 9.4.2011. That at the instance of the respondent No.2, accidental death case was also registered in the concerned police station.
5.2 It is stated that the intention of the petitioner of moving the present petition after a gap of 10 months after having lost in Special Criminal Application No.875 of 2013 is to keep the trial on hold by filing adjournment applications so as to keep the respondent No.2 behind the bars for a longer period. It is stated that the only interest of the petitioner is to see that all the accused including the respondents No.3 to 5 who are bailed, are sent behind the Bars and for that he preferred Criminal Misc. Application No.117 of 2011 for cancellation of their bail was preferred.
5.3 Rest of the contentions and the grounds urged by the petitioner are disputed by respondents in their affidavits.
5.4 Respondents No.2 to 4 have also filed affidavit to answer the draft amendment moved by the petitioner.
Page 6 of 24 R/SCR.A/3289/2013 CAV JUDGMENT5.5 On record various documents have been produced amongst which an application Exh.126 in Sessions Case No.29 of 2011 moved by Second PSI, Khambhalia Police Station praying for a lie detection test of accused while attributing to them the concealment of the details as to missing child was moved which came to be rejected by the trial court for the reasons recorded therein. It is not necessary to dwell upon the contents of said order since the rejection was not challenged in the higher forum.
6. Learned counsel for the petitioner also drew the attention of this Court to a letter dated 20.4.2011 addressed by Mr.Jayesh J.Hathaliya, Special Public Prosecutor to Deputy Secretary, Legal Department, State of Gujarat pointing out various infirmities in the investigation by the police while advising for further proceedings against the order below Exh.126.
7. The reasons recorded by the learned trial Judge for rejection of the application Exh.82 can be summarised as under:
7.1 That application having been given after a long period, would result into delaying the trial.
7.2 That accidental death report came to be filed in the concerned police station at the instance of husband of the deceased on 5.2.2011 itself, and therefore, as per police record, efforts for location of the missing child were made by him.
7.3 That he had telephonically requested his friend Shri Trivedi to help and locate the missing child and that `it appears that Shri Trivedi had assigned the task to some junior and on behalf of accused (respondent Page 7 of 24 R/SCR.A/3289/2013 CAV JUDGMENT No.2) search for missing child was made in the house of his father in law'.
7.4 In response to the dissatisfaction expressed by the petitioner on the efforts as in paragraph Nos.7.1, 7.2 and 7.3 by 2 nd respondent, learned Judge proceeded to reason that because of marital discord between the two, her possibility of not going directly to the dam or the fields on the fateful day cannot be ruled out and that her chances of going to her parental house with a complaint against her husband cannot be ruled out. The learned Judge further raised a doubt that the husband keeping in view the aforesaid possible conduct of the deceased had gone to his inlaws place at Jamnagar.
7.5 The learned trial Judge, however, thereafter being conscious of the fact that the deceased could have been contacted by accused Prashant through mobile advised that he should not have wasted the time.
7.6 That the incident had occurred during peak hours i.e. at about 11:00 a.m., and the possibility of the lady ( sic with child) having not be noticed by busy peoples during the peak hours cannot be ruled out.
7.7 The learned trial Judge acknowledged the fact that no report for the child and woman having gone missing was made by accused but reasoned that since the dead body of Aartiben was located on 7.2.2011, no report in respect of missing child might have been given.
7.8 In response to the doubt of transferring of the child who was already holding passport, to a foreign country, the learned Judge ruled that investigation was done on this count and necessary report was also Page 8 of 24 R/SCR.A/3289/2013 CAV JUDGMENT made to the passport authority but no passport of the child was received by Investigating Officer neither any evidence of the child of having been transferred beyond the Indian territory was traced.
7.9 In the impugned order, the learned Judge expressed satisfaction over the investigation carried out so far and noted that no new facts warranting further investigation under Section 173 (8) of the Cr.PC were found. Ultimately, the learned Judge asked the Investigating Officer to be alert and asked for further investigation on discovery of new facts. However, acknowledges the fact that in depth investigation might not have been made.
8. It is in the aforesaid facts and circumstances of the case, the arguments advanced by the learned counsel for the parties are required to be appreciated.
9. Learned counsel for the petitioner would submit that a proper investigation in the case is needed. He argued that concededly the child with the deceased on 5.2.2011 on which date her husband i.e. accused No.2 went to Jamnagar.
10. The learned counsel would argue that no investigation was done on the following points:
10.1 What happened at Jamnagar when respondent No.2 went there is not investigated.
10.2 As per P.M. report, the deceased was alive for 30 hrs after she left her home on 5.2.2011 at about 11:45 a.m. According to him, she was Page 9 of 24 R/SCR.A/3289/2013 CAV JUDGMENT alive upto 5:00 p.m. of 6.2.2011 and the investigation is silent as to happenings between 11:45 a.m. of 5.2.2011 and 5:00 p.m. of 6.2.2011.
10.3 He would argue that for the reasons best known to the Investigating Officer, no remand for custodial interrogation of the accused was asked for which strengthens the suspicion of the petitioner of lack of impartial investigation.
10.4 After a week from 5.2.2011 statement of one field owner who claimed having seen the lady with the child telling him that she was going to meet her husband, came to be recorded but no investigation as to whether she really met her husband and the happenings there was made.
10.5 That during the course of above period the accused appears to have made about 400 mobile calls during which possibility of accused being in touch with custodian of Hemaksh cannot be ruled out but no investigation to obtain the details of mobile calls to find out the location and movements of the accused was made.
10.6 A busy market intervenes the way to Dam and a lady with the boy went missing at 11:45 a.m. i.e. during the peak hours but no statement of any shop owners came to be recorded.
10.7 The learned counsel would submit that the silence of the Investigator on the aforementioned crucial aspects strengthens the suspicion of the petitioner that the child might have been snatched from the lady and thereafter she might have been thrown into the Dam.
10.8 That a mere recording of the statement of insignificant witnesses Page 10 of 24 R/SCR.A/3289/2013 CAV JUDGMENT or searching for the child at the house of the accused is a mockery of investigation.
10.9 That even the Investigating Agency as also the learned Special Public Prosecutor Shri Hathaliya while opining to challenge the impugned order expressed desirability and necessity for further investigation and therefore the case for further investigation was made out.
10.10 That doubt of partial investigation is strengthened not only by inaction of the accused persons in pursuing the matter for location of the missing child but also by contesting this case despite the fact that the missing child is the heir of respondent No.2.
10.11 In support of his arguments, learned counsel has relied upon the following authorities:
(I) Azija Begum Vs. State of Maharashtra and another [ (2012) 3 SCC 126 ].
(II) Vipul Shital Prasad Agarwal Vs. State of Gujarat and another [ (2013) 1 SCC 197 ].
(III) Narmada Bai Vs. State of Gujarat and others [ AIR 2011 SC 1804 ].
(IV) Samaj Parivartan Samudaya and others Vs. State of Karnataka and others [ AIR 2012 SC 2326 ].
(V) Hasanbhai Valibhai Qureshi Vs. State of Gujarat and others [ (2004) 5 SCC 347 ].
(VI) Vinay Tyagi Vs. Irshad Ali @ Deepak and others [ (2013) 5 SCC 762 ].
11. As against that, while opposing the petition, the learned counsel Page 11 of 24 R/SCR.A/3289/2013 CAV JUDGMENT for the respondents No.2 to 5 would argue that the object of the petitioner is to keep the accused No.2 behind the bars for as long period as he desires. That the said accused is in Jail since 9.2.2011. Accused himself filed accidental death report with the concerned police station and therefore his credentials be not doubted. He would contend that investigation has been properly carried out, statement of various witnesses have been recorded, other material is also collected and the trial court by an order below Exh.82 has rightly rejected the application moved under Section 173(8) of the Cr.P.C. He would contend that, at the petitioner's instance, Section 302 came to be added in the charge. He would argue that on various occasions the petitioner failed to convince the High Court. He would argue that in the application Exh.82 in the court below, no prayer for transfer of investigation was made. It was restricted to further investigation under Section 173(8) of the Cr.P.C., and thus, it is argued that the petitioner is interested in harassing the accused persons by not only seeking further investigation but also transfer of investigation to other agency. It was argued that the stage for further investigation selected by the petitioner is crucial inasmuch as already 11 witnesses were examined on the date of the application without making out any case. That the petitioner did not make out any case for further investigation and it is not the petitioner's case that other additional oral and documentary evidence was found necessitating further investigation. It was argued that it is not correct to say that the husband did not take interest and that the trial court had rightly recorded the fact that the satisfactory efforts were made by the father for location of missing child. He would also argue that no case for transferring the investigation to other agency was made out.
11.1 The learned counsel would argue that the argument in relation to lie detection test is barred by res judicata and this being a third round of Page 12 of 24 R/SCR.A/3289/2013 CAV JUDGMENT litigation by the petitioner, the petition needs to be dismissed with costs.
12. The learned APP would contend that the investigation was perfectly done and statements of various witnesses were recorded immediately after the incident and also after the representation made by the petitioner. It was argued that at no point of time any grievance was made against the Investigating Agency. Neither the story of preplanned murder was urged. He argued that this being a third round of litigation initiated by the petitioner, the petition deserves to be dismissed. He argued that after failing to secure the orders for further investigation from this Court, again a habeas corpus petition was preferred and then application under Section 173(8) of Cr.P.C. at Exh.82 came to be made. He also argued that nongrant of the prayers by the High Court in various proceedings and withdrawal thereof by the petition would amount to dismissal of the petitions filed by petitioner
13. In support of his contention, he would rely upon the following authorities:
(i) Rajesh and others Vs. Ramdeo and others [ (2001) 10 SCC 759 ].
(ii) Popular Muthiah Vs. State Represented by Inspector of Police [ (2006) 7 SCC 296 ].
(iii) Sasi Thomas Vs. State and others [ (2006) 12 SCC 421 ].
14. Before embarking upon the arguments advanced by the learned counsel, the law on the question of investigation and appointment of other agency discussed in the authorities cited at the bar is required to Page 13 of 24 R/SCR.A/3289/2013 CAV JUDGMENT be appreciated.
15. In Samaj Parivartan Samudaya and others (supra), following principles was held in para 36.
"...... ..... Significantly, it requires to be noticed that when the court is to ensure fair and proper investigation in an adversarial system of criminal administration, the jurisdiction of the Court is of a much higher degree than it is in an inquisitorial system. It is clearly contemplated under the Indian Criminal Jurisprudence that an investigation should be fair, in accordance with law and should not be tainted. But, at the same time, the Court has to take precaution that interested or influential persons are not able to misdirect or hijack the investigation so as to throttle a fair investigation resulting in the offenders escaping the punitive course of law. It is the inherent duty of the Court and any lapse in this regard would tantamount to error of jurisdiction."
15.1 In Hasanbhai Valibhai Qureshi (supra), the proposition of law in relation to further investigation is thus:
"13. In Om Prakash Narang and another v. State (Delhi Admn.), (AIR 1979 SC 1791) it was observed by this Court that further investigation is not altogether ruled out merely because cognizance has been taken by the Court. When defective investigation comes to light during course of trial, it may be cured by further investigation if circumstances so permitted. It would ordinarily be desirable and all the more so in this case, that police should inform the Court and seek formal permission Page 14 of 24 R/SCR.A/3289/2013 CAV JUDGMENT to make further investigation when fresh facts come to light instead of being silent over the matter keeping in view only the need for an early trial since an effective trial for real or actual offences found during course of proper investigation is as much relevant, desirable and necessary as an expeditious disposal of the matter by the Courts. In view of the aforesaid position in law if there is necessity for further investigation the same can certainly be done as prescribed by law. The mere fact that there may be further delay in concluding the trial should not stand on the way of further investigation if that would help the Court in arriving at the truth and do real and substantial as well as effective justice. We make it clear that we have not expressed any final opinion on the merits of the case."
(emphasis supplied) 15.2 In Vinay Tyagi (supra), following principles of law has been laid down in paras 22, 40.5, 41, and 51.
"22 `Further investigation' is where the Investigating Officer obtains further oral or documentary evidence after the final report has been filed before the Court in terms of Section 173(8). This power is vested with the Executive. It is the continuation of a previous investigation and, therefore, is understood and described as a 'further investigation'. Scope of such investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the Court even if they are discovered at a subsequent stage to the primary investigation. ..... ...... ..... The basis is discovery of fresh evidence and in continuation of the same offence and chain of events relating to the same occurrence incidental thereto. In other words, it Page 15 of 24 R/SCR.A/3289/2013 CAV JUDGMENT has to be understood in complete contradistinction to a 'reinvestigation', 'fresh' or 'de novo' investigation. The scope of further investigation is restricted to the discovery of further oral and documentary evidence. Its purpose is to bring the true facts before the court even if they are discovered at a subsequent stage to the primary investigation. The report submitted in pursuance of further investigation is commonly described as "supplementary report" as the subsequent investigation is meant and intended to supplement the primary investigation conducted by the empowered police officer. Another significant feature of further investigation is that it does not have the effect of wiping out directly or impliedly the initial investigation conducted by the investigating agency.
40.5 The Code is a procedural document, thus, it must receive a construction which would advance the cause of justice and legislative object sought to be achieved. It does not stand to reason that the legislature provided power of further investigation to the police even after filing a report, but intended to curtail the power of the court to the extent that even where the facts of the case and the ends of justice demand, the court can still not direct the investigating agency to conduct further investigation which it could do on its own.
41. Having discussed the scope of power of the Magistrate under Section 173 of the Code, now we have to examine the kind of reports that are contemplated under the provisions of the Code and/or as per the judgments of this Court. The first and the foremost document that reaches Page 16 of 24 R/SCR.A/3289/2013 CAV JUDGMENT the jurisdiction of the Magistrate is the First Information Report. Then, upon completion of the investigation, the police are required to file a report in terms of Section 173(2) of the Code. It will be appropriate to term this report as a primary report, as it is the very foundation of the case of the prosecution before the Court. It is the record of the case and the documents annexed thereto, which are considered by the Court and then the Court of the Magistrate is expected to exercise any of the three options aforenoticed. Out of the stated options with the Court, the jurisdiction it would exercise has to be in strict consonance with the settled principles of law. The power of the magistrate to direct 'further investigation' is a significant power which has to be exercised sparingly, in exceptional cases and to achieve the ends of justice. To provide fair, proper and unquestionable investigation is the obligation of the investigating agency and the Court in its supervisory capacity is required to ensure the same. Further investigation conducted under the orders of the Court, including that of the Magistrate or by the police of its own accord and, for valid reasons, would lead to the filing of a supplementary report. Such supplementary report shall be dealt with as part of the primary report. This is clear from the fact that the provisions of Sections 173(3) to 173(6) would be applicable to such reports in terms of Section 173(8) of the Code.
51. ... .... ... It will be a travesty of justice, if the court cannot be permitted to direct 'further investigation' to clear its doubt and to order the investigating agency to further Page 17 of 24 R/SCR.A/3289/2013 CAV JUDGMENT substantiate its charge sheet.
(emphasis supplied ) 15.3 In Rajesh and others (supra), on facts, constitution of a panel for investigation by the High Court, though otherwise the investigation was already in progress was found to be unwarranted.
15.4 In Sasi Thomas (supra), the proposition of law on further investigation in para 15 and 18 thus held:
"15. Proper and fair investigation on the part of the investigating officer is the backbone of rule of law. A proper and effective investigation into a serious offence and particularly in a case where there is no direct evidence assumes great significance as collection of adequate materials to prove the circumstantial evidence becomes essential. ..... ...."
( emphasis supplied ) 15.5 On facts, however, the further investigation was declined in view of the fact that 47 witnesses were already examined. It was held that recourse to Section 391 of Cr.P.C. is open if during the trial it is found necessary.
15.6 Popular Muthiah (supra), is an authority reiterating interalia the principle that the powers under Section 482 of Cr.P.C. shall be exercised by the High Court sparingly.
16. It cannot be disputed that the purpose of investigation is to reach to correct facts. Investigation is very foundation of the prosecution.
Page 18 of 24 R/SCR.A/3289/2013 CAV JUDGMENTApparent loopholes in it if unattended may cause miscarriage of justice and confer unwarranted benefit on an offender. Disclosure of `fresh facts' would necessarily include uninvestigated material facts going to the root of the matter. The material facts are the facts in absence of which the very foundation stands shaken. Procedure under the Cr.P.C. is meant for meeting with the ends of justice and ends of justice cannot be defeated on technicalities.
17. It also cannot be disputed that accused's judicial custody during investigation, post investigation and post conviction is a custody in accordance with the procedure established by law. Investigation or further investigation is a right, and at the same time an obligation of the Investigating agency, if otherwise warranted in the facts of a particular case. Therefore on mere ground of extension of accused's custody for some more time, further investigation to meet with ends of justice cannot be declined.
18. In the instant case, it has been noticed that investigation mostly focused on the happenings on 07/02/2011 and thereafter it is only after petitioners' application that few statements here and there came to be recorded and action taken report came to be filed by the Investigator as discussed in the impugned order. The loopholes which were pointed out to the learned trial Judge were merely explained by the learned Judge on surmises and conjectures. From such reasonings, the necessity for further investigation can be inferred inasmuch as instead of reasoning on its own, the learned trial Judge ought to have ordered further investigation to find out correct facts.
19. The crucial period for investigation would necessarily cover 5 th, 6th and 7th February in its fold inasmuch as concededly the lady with the Page 19 of 24 R/SCR.A/3289/2013 CAV JUDGMENT child left house on 5th and was found dead on 7th February, 2011; albeit without child. A huge doubt is raised on the conduct of the accused particularly the respondent No.2 herein who was satisfied with the investigation as to his missing son, on the ground that efforts made by him i.e. lodgment of accidental death report, assigning the work of searching the child to his friend were unbecoming of a father, who, on the loss of his son would leave no stone unturned. A doubt is raised as to whether such conduct of a father was natural or that he was satisfied because actually he is in custody of the missing child.
20. It is noticed that admittedly the child Hemaksh was with the deceased on 5.2.2011. As per P.M.Report which was carried out on 8.2.2011 the death of the deceased could be reckoned within 30 hrs of the date and time of the postmortem. Thus, it prima facie appears that the deceased must have died around 5:00 p.m. of 6.2.2011 and investigation is silent on the happenings between 5.2.2011 after 11:45 a.m. and 6.2.2011 upto 5:00 p.m. This appears to be a crucial aspect which needs further investigation.
21. Further the statement of one field owner came to be recorded after a week of the date of the incident who claims to have interacted with the deceased who told him that she was going to barg area to meet her husband. However, whether she went there with her child and meet her husband and other happenings in barg area have not been investigated at all.
22. The police could detect the mobile calls in the mobile of 2 nd respondent on and around the date of the incident but no investigation obtaining the call details to ascertain the location of the accused and other persons who might have interacted with the accused persons etc. Page 20 of 24 R/SCR.A/3289/2013 CAV JUDGMENT came to be investigated.
23. According to the petitioner, there is a busy market intervening Dam and the deceased went missing in the peak hours at about 11:45 a.m., but no attempt has been made to record the statement of any of the shop owners to ascertain the movement of the deceased at the relevant point of time.
24. All the aforementioned uninvestigated question are material and would considerably throw light on the incident in question, if investigated.
25. The proceedings instituted by the petitioner in the High Court or elsewhere mostly on different subjects i.e. habeas corpus cannot be cited as hindrances in entertaining the present petition arising out of the impugned order declining further investigation as aforesaid.
26. As noticed above, one of the petition came to be disposed of so as to enable the petitioner to seek appropriate remedy under Section 173(8) of Cr.P.C., and thus, such liberty having been reserved, the petitioner can maintain the present petition against refusal of further investigation.
27. This Court is unable to see any iota of attempt to harass the accused in preferring an application under Section 173(8) of Cr.P.C. as great deal of substance as discussed hereinabove is found in the arguments of the petitioner. Further on mere ground of the petitioner having moved after 6 or 7 months with an application under Section 173(8) of Cr.P.C., he cannot be nonsuited in view of the substance found in the petition.
Page 21 of 24 R/SCR.A/3289/2013 CAV JUDGMENT28. For the foregoing reasons, the impugned order cannot be sustained and the petition deserves to be allowed. Accordingly the petition is allowed. It is directed that further investigation under Section 173(8) of the Cr.P.C. shall be conducted on the points discussed in para 20 to 23.
So far as the prayer for change of Investigating Agency is concerned, it appears that the petitioner doubts the intention of the Investigating Agency for having left the loopholes in the investigation as above. Argument is that no remand of the accused was sought for custodial interrogation at the relevant point of time and that investigation was perfunctory on various aspects. It is relevant to note that no prayer for change of investigating agency was made before the court below. Be that as it may, in opinion of this Court, facts warranting the change of Investigating Agency are not established on record.
Ends of justice also would be met if any other Investigating Officer i.e. other than the one who conducted the investigation earlier, as may be appointed by the concerned Superior Officer, Jamnagar carries out further investigation. Accordingly ordered.
It is clarified that such officer will only carry out further investigation on the points mentioned in this judgment and would not reinvestigate the matter.
Further, ends of justice would be met if the investigation is monitored by the learned Magistrate competent to take cognizance of the offence in view of Sakiri Vasu Vs. State of Uttar Pradesh and Page 22 of 24 R/SCR.A/3289/2013 CAV JUDGMENT others [ 2008(2) GLH 269 ]. Accordingly ordered.
The Investigating Officer will submit the supplementary report to the Magistrate concerned within a period of 30 days from the receipt of writ of this Court, and the learned Magistrate will examine the papers and if satisfied with the supplementary report making out cognizable offence, would forward the same to the learned Additional Sessions Judge, who is trying the sessions case aforesaid.
Even if the learned Magistrate finds no cognizable offence on further investigation, then also, for perusal, the papers shall be forwarded to the aforementioned learned Additional Sessions Judge.
It is clarified that the learned Magistrate would not register a fresh case but would only forward the papers as aforesaid. If the learned Magistrate is not satisfied with the report, it will be open for him to issue necessary direction to the Investigating Officer in accordance with law. He would consciously monitor the investigation as aforesaid.
It is further clarified that in the meanwhile under no circumstances the trial of the sessions case be haulted. It will continue and if on the basis of subsequent report, further witnesses are to be examined, the learned Additional Sessions Judge is at liberty to do so.
The whole procedure after the submission of the supplementary report shall be completed as expeditiously as possible, on top priority, considering the fact that the trial of the sessions case is in progress. Further, before pronouncement of the judgment, the learned Additional Sessions Judge shall ensure as to whether the papers after completion of further investigation as directed by this Court are furnished to him or Page 23 of 24 R/SCR.A/3289/2013 CAV JUDGMENT not.
It will be open for the respondent No.2 to approach this Court in case of any difficulty.
At this stage, request is made for staying this order to enable the respondent No.2 to approach the higher forum. Learned counsel for the petitioner opposes the request. Considering the settled legal position that the accused cannot oppose the investigation as also considering the fact that the accused, as stated by learned counsel for respondent No.2 is in jail since last more than three years, it is not in the interest of justice to stay this order since that may further delay the proceedings.
(G.R.UDHWANI, J.) syed/ Page 24 of 24